State v. Silverstein

State of Wisconsin, Plaintiff-Respondent,v.Samuel Silverstein, Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Milwaukee County No.
2015CF2778: ELLEN R. BROSTROM, Judge. Affirmed.

Before
Brennan, P.J., Brash, and Dugan, JJ.

BRENNAN, P.J.

¶1
Samuel Silverstein appeals from a judgment of conviction,
entered on his guilty plea, for three counts of possession of
child pornography. Silverstein first argues that the trial
court erred in denying his motion to suppress the evidence
recovered from his computer after the search of his home
pursuant to a warrant. He contends that the affidavit for the
search warrant failed to state probable cause because it was
based on "the uncorroborated tip of an anonymous
informant." The informant was Tumblr.com
("Tumblr"), an electronic service provider
("ESP") required by federal law to report suspected
child pornography to the National Center for Missing and
Exploited Children ("NCMEC"), which in turn
provided the information to the police.

¶2
We conclude, based on Wisconsin case law regarding citizen
informants found in State v. Paszek,50 Wis.2d 619,
630, 184 N.W.2d 836 (1971), and State v. Kerr, 181
Wis.2d 372, 381, 511 N.W.2d 586 (1994), that a tip from an
ESP is properly viewed as one from an identified citizen
informant, not an anonymous informant, which therefore
establishes the personal reliability requirement in our case
law. Additionally, the affidavit here also shows sufficient
indicia of observational reliability of the ESP. Therefore,
applying the "great deference" we pay to a
determination of probable cause, see State v.
Anderson,138 Wis.2d 451, 469, 406 N.W.2d 398 (1987), we
conclude that the warrant-issuing magistrate "had a
substantial basis for concluding that a search would uncover
evidence of wrongdoing." See id. Accordingly,
we uphold the determination.

¶3
Silverstein also raises a constitutional challenge to his
sentence. He argues that WIS. STAT. § 939.617
(2015-16)[1] violated due process requirements of fair
notice because it failed to provide clear guidance for those
who enforce and apply the law and created uncertainty about
whether he would be subject to a mandatory minimum three-year
sentence or could instead receive a lesser sentence. In
State v. Holcomb, 2016 WI.App. 70, 371 Wis.2d 647,
886 N.W.2d 100');">886 N.W.2d 100, [2] this court interpreted § 939.617 and
concluded that the statute's language was "plain and
unambiguous" and required a mandatory minimum sentence
for all defendants more than four years older than the child
victims. Id., ¶\5. This court concluded that
"[t]he only reasonable construction" of the statute
requires the imposition of a mandatory minimum sentence.
Id., ¶ll. We find Holcomb's
holding dispositive of the due process fair notice issue.

¶4
We reject Silver stein's arguments and affirm.

BACKGROUND

¶5
This case has a fact pattern common in internet child
pornography cases. A private company providing internet
services discovers images of suspected child pornography in a
user's account and then, pursuant to federal law,
[3]
forwards information about the images and the user's
account to NCMEC. NCMEC is directed by federal law to serve
as a clearinghouse for such tips and as a liaison to law
enforcement.[4] As NCMEC describes its role in the report
generated in this case, "When a Reporting ESP
voluntarily reports an IP [Internet Protocol] address for the
'User or Person Being Reported, ' NCMEC Systems will
geographically resolve the IP address via a
publicly-available online search." In other words, NCMEC
identifies where the IP address identified in the ESP's
tip is located. Then, pursuant to federal law, NCMEC sends
both the original tip and its geographic information to
relevant federal and state law enforcement agencies. Law
enforcement agencies then investigate and obtain search
warrants, and may make arrests. That was the process followed
here as set forth in the affidavit for the search warrant.

¶6
In this case, the initial tip was provided to NCMEC by
Tumblr, a social media web site[5] that allows account holders to
publicly post images to blogs. According to the warrant
affidavit,

The NCMEC Cybertip listed the reporting agency was Tumblr.
Said report indicated on 06/01/15 at about 17:45:00 UTC,
[6]
Tumblr created a report regarding "Child
Pornography" related to URL:
"famousenemyland.tumblr.com" with email
ssilver58@att.net and IP Address 99.185.140.72.

¶7
In a page from the NCMEC "CyberTipline Report" that
was attached to the affidavit, the "[s]ubmitter" is
identified as:

Tumblr

Mahashraya Sundararaman

¶8
According to the affidavit for the warrant, NCMEC reported
that the Tumblr tip identified specific file names for nine
still images and a video depicting child pornography. After
receiving the information from Tumblr, NCMEC added the state,
city, zip code, area code, and internet service provider for
the IP address associated with the nine still images and one
video. On July 9, 2015, NCMEC sent the information in two
separate tip reports to the Bayside Police Department.

¶9
The warrant affidavit, signed by Detective Bryan Bichler of
the Glendale Police Department and attached to eleven pages
from the NCMEC reports, further states that through subpoenas
and search warrants, Officer Ryan Bowe of the Bayside Police
Department determined that the subscriber using the
identified IP address was Sam Silver stein of 6898 N. Seville
Ave. in Glendale. A search warrant was issued on Detective
Bichler's affidavit, and Silverstein's house was
searched.

¶10
Police found a flash drive containing videos ranging in
length from one minute to twenty-three minutes. The videos
portrayed females estimated to be four to fourteen years old
engaged in sexual activity; seven of the videos depicted sex
acts involving a female child and an adult male.
[7]Silverstein admitted the drive belonged to
him, waived his rights, and made statements to police
acknowledging that he possessed the images "for his own
purposes" and that he "may have" posted screen
captures from the videos to his Tumblr account. The complaint
explains that one video contained a picture that matched the
third image in the cyber tip, and a second video contained
two of the still images (images numbered four and five)
reported in the cyber tip.

¶11
Based on his possession often videos found on the drive,
Silverstein was charged with ten counts of possession of
child pornography, a Class D felony. Silverstein challenges
here, as he did below, the search warrant application on the
grounds that it lacked probable cause due to the
insufficiency of the tip from Tumblr through NCMEC to the
police. Here a circuit court judge[8] signed the search warrant,
approving the application. Silverstein challenged the search
warrant, and the recovery of the computer and images, with a
motion to suppress before the circuit court but was
unsuccessful.

¶12
After the trial court denied Silverstein's motion to
suppress, he pled guilty, pursuant to a plea agreement, to
three counts and the remaining seven were dismissed and read
in. He now appeals the conviction raising again the
constitutional challenge to the search warrant's
sufficiency and adding another, a due process challenge to
the application of the minimum mandatory sentence
requirements of WIS. STAT. § 939.617 to his sentence.

DISCUSSION

I.
We uphold the determination that the affidavit stated
probable cause to issue a search warrant.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A.
The ...

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